Appeals Court: Forcing A Teen To Masturbate So Cops Can Take Pictures Is A Clear Violation Of Rights

from the well-no-shit dept

I cannot imagine what it must be like as an appellate court judge to have to write these words (h/t Brad Heath):

Construing the facts in the light most favorable to [Trey] Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

I don't know which is sadder: the fact that this case -- the absolute nadir (so far!) of stupid teen sexting prosecutions -- even exists or that the lower court somehow found in favor of the officer (now deceased) being sued.

A cop engaged in the act of producing child pornography by attempting to force a teen to arouse himself while surrounded by police officers supposedly for the purpose of matching the teen's erect penis to photos the cop already had in his possession as part of a sexting "investigation." The officer was told by prosecutors to do this, which shows the twisted logic of this abhorrent request didn't spring entirely from the mind of Detective David Abbott. He, however, did not turn down the prosecution's request. The prosecutor who ordered this "production" of evidence was Claiborne Richardson. Unfortunately, he has the sort of immunity cops like Abbott can only wish they had: absolute immunity. Richardson walks away from this with little more than reputational damage.

There's a judge out there somewhere with their name scrawled across a granted warrant request ordering a teenager to produce an erection for cops. Actually, there's two of them, though both go unnamed in the decision [PDF]. (Oral arguments are embedded at the bottom of the post.) From the dissent's[!] footnote:

On this record, search warrants were issued on June 3, 2014, and again on July 1, 2014, by two different magistrates. See Supp. J.A. 72, 76. The June warrant was the only one executed. In executing the June warrant, Abbott was unable to obtain some of the photos being sought. Because the prosecutor and the detective agreed that additional photos were necessary, Abbott was directed to seek the July warrant. That warrant was never executed and was voided.

And there's the judge who heard the prosecution's request to get this warrant and said that was fine. That judge's name is Jan Roltsch-Anoll. All of these justice system components worked together to put a teen in a room full of cops with the instructions to masturbate so a detective could take photos.

Abbott's representation was willing to take a chance on seeing the lower court's awful immunity decision upheld, despite there being nothing remotely sane -- much less Fourth Amendment-compliant -- about law enforcement's actions. Detective Abbott's survivors continue his fight for him as Abbott killed himself in late 2015 as police tried to arrest him for allegedly molesting two teens he met coaching youth hockey. (Make of that what you will.)

The Fourth Circuit Court of Appeals finds nothing at all to like about Abbott's pleas for qualified immunity.

Abbott’s search directed at forcing Sims to achieve an erection intruded “upon an area in which our society recognizes a significantly heightened privacy interest.” See Winston v. Lee, 470 U.S. 753, 767 (1985). Requiring Sims to masturbate in the presence of others, like searches involving physical penetration of genitalia, constituted “the ultimate invasion of personal dignity.” Amaechi, 237 F.3d at 363-64; see also King, 825 F.3d at 215.

Moreover, we observe that this sexually intrusive search was rendered more egregious by being conducted in a manner that would instill fear in Sims. See Edwards, 666 F.3d at 884-85. Here, Sims alleged that he was “surrounded” by three armed officers as he questioned whether he was required to submit to Abbott’s orders. Upon Abbott’s insistence, Sims ultimately attempted to comply. Sims further alleged that the search caused him to suffer emotional harm. Winston, 470 U.S. at 761-63 (explaining that intrusions without risk of physical harm nonetheless damage the individual’s sense of personal privacy and security). Accordingly, both the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted weigh strongly against any finding that the search was reasonable.

Nothing.

We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others.

Abbott's estate argued the search violated no clear precedent. In other words, no comparative case had reached this level in the justice system and found ordering a teen to masturbate in front of police officers (while one of them photographed him) was a clearly established violation of the Fourth Amendment. The court agrees, but notes there's a very good goddamn reason why there's no precedent exactly on point with this abysmal abuse of power.

We further observe that the Administrator is not entitled to invoke qualified immunity simply because no other court decisions directly have addressed circumstances like those presented here. See Clem, 284 F.3d at 553. For good reason, most outrageous cases of constitutional violations rarely are litigated. See K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (explaining that never before had there been a case accusing welfare officials of selling foster children into slavery, but those officials nevertheless would not be entitled to immunity). Abbott’s conduct affronted the basic protections of the Fourth Amendment, which at its core protects personal privacy and dignity against unjustified intrusion by governmental actors.

The dissent actually believes Abbott should still be granted immunity because a) he obtained warrants and b) he consulted with Commonwealth prosecutors (namely, Claiborne Richardson, whose reputation should be just as worthless as Abbott's) before obtaining them. If we follow this line of thinking, we are being asked to absolve all officers of egregious misconduct so long as certain procedural steps are followed before they go off the deep end. In fact, it asks to reward officers (and other government employees) who can find support from equally-questionable colleagues for their actions. According to the dissent, the whole rotten barrel should be excused from punishment because the rot was caused by several bad apples, rather than a single, rogue actor.

Even worse, if you're going to choose a qualified immunity hill to die on, why would you choose the one containing cops and prosecutors taking photographs of a masturbating teen? What possible public service could a decision in the detective's favor possibly provide? All it would do is create one more line an Appeals Court has yet to draw, allowing cops to force minors to strip and masturbate as long as they have a warrant. But that's what Judge Robert B. King apparently wants: no precedential declaration that forcing minors to masturbate in the presence of officers is a clear violation of established rights. But that's the way the system works. It so insulates police officers and prosecutors from accountability, no one at the bottom level of this pathetic prosecutorial food chain took any action to stop this from happening until after two warrants were issued and one was executed.

True fact: people in these positions can stop at any time. They don't need to wait for clearly-established precedent from high-level federal courts. No one forces prosecutors to suggest taking photos of a teen's erect penis and insane requests from prosecutors can always be turned down by law enforcement officers. But no one did anything to head off the clear rights violation. And once it was done, Detective Abbott tried to Nuremberg his way out of it and the Commonwealth's attorney -- Claiborne Richardson -- ducked out of the public eye as soon as the shit started hitting the fan. The legacy of everyone involved, from the detective executing the warrant to the juvenile court judge who granted time for it to be executed should be tarnished forever.

Re: Re: Civil Lawsuit

Seems like this would implicate the 1st Amendment as well as the 4th Amendment. Masturbation is a sexual act and many people have religious beliefs about when and where it's appropriate to perform a sexual act. Requiring the kid to do this may violate his religious beliefs, which is a 1st Amendment issue as well.

It takes a village...

downward spiral

I wonder if there's a secret Facebook club where cops and prosecutors trade and share all the nude photos of "detainees" they come across? We know that the U.S. Marines had such a nude-pic trading club of female soldiers, so why can't cops have their share of fun too?

It seems that we're living in a constant downward spiral, as so many the things that would have been considered unacceptable -- if not unspeakable-- a few generations ago are now commonplace. Strip searches (whether hands-on or digital) at airports, body-cavity searches at jails (and occasionally at roadside) and search warrants that allow searches inside the human body.

It also begs the question, if police were to get a search warrant for a teenager's semen, what lengths are they allowed to go to execute that search warrant? (no need to answer, we all know what some of them would do!)

Re: Re: Turn the tables

Re: Turn the tables

Isn't it already sexual assault? I mean, really? Add conspiracy to create and disseminate child pornography from point of the signed warrants up and we should, at the very least, have a couple more names on the sex offender registry, no?

I can see it

I mean what possible reason could a prosecutor, three judges and the police involved possibly have had to think that forcing a teen masturbate on camera, something that would be blatantly illegal if anyone without a badge had done it and would have gotten the perpetrator a guilty verdict in record time, would be wrong?

You can't expect prosecutors, judges and police to think for themselves, if it's not on the books they clearly had no way to even begin to suspect that what they were doing was wrong, making this ruling a complete travesty without a doubt.

Re: I can see it

Prosecutors play these kind of mind games all the time against people in order to extract a guilty plea from them. That could be what's going on here. We all know that people who refuse to plead guilty often get the wrath of God thrown at them, especially in federal court. And prosecutors no doubt think of themselves as God because they literally are God.

Re: I can see it

> I mean what possible reason could a prosecutor, three > judges and the police involved possibly have had to think > that forcing a teen masturbate on camera, something that > would be blatantly illegal if anyone without a badge had > done it and would have gotten the perpetrator a guilty > verdict in record time, would be wrong?

What possible reason did any of them have to think it would even work? Leaving aside all the legal and moral problems, who the hell outside of a professional porn actor could get it up under those circumstances?

And honestly, if you're subject to one of these orders, it's not like you can be charged with contempt for failure to become sexually aroused, so to hell with them all.

Re: Re: I can see it

Re: I can see it

To be fair, it doesn't appear that the prosecutor asked the police to tell the teen to masturbate for the camera. That seems to have all been their idea. Also, once the news got out, the prosecutor didn't follow up on the second warrant they obtained for additional photos and agreed not to use the first set.

That's about as far as my defense of any of these people goes, though.

Re: Is this happening in the same country ...

being forced to resign for sexual harassment because they touched someone's arm two decades ago?

I don't think "rubbing elbows" means what some think it means. /snark

And I'm not aware of anyone accused of sexual misconduct for an uninvited touch to the arm. That would be simple assault, not sexual assault. Please give citations and links to news stories where someone was accused of sexual assault and claimed "they just touched their arm" so I can evaluate it for trustworthiness. This sounds like bad deflection, or partisan spin. Let me be very clear here - I do not give one good G.D. what party someone belongs to. If someone is a sexual predator, they need to go.

Re: Re: Re: Is this happening in the same country ...

The moment someone overreacts like that, I wonder which back alley bar bathroom he's taking his rent boys to. Nobody actually secure in their sexuality would react like that, and those who complain loudest about something like that are usually the ones doing it the most.

Re: Re: Re: Re: Is this happening in the same country ...

Touching is also a way of signalling power (as is loudly laughing and mocking someone who complains of said touching). That's how I saw viewed that incident.

That's why cops and prison guards give themselves the right to touch people freely, yet will react negatively when the person objects or pulls away, and violently if the person (particularly male) dares to touches them back.

Daryl Metcalfe grew up in a small conservative town, the kind of place where being accused of homosexuality was/is the worst insult to lay on a man. The accusation could also help keep some light-duty middle school bullies at bay, well, not exactly bullies, but the kind of hyperactive kids who liked engaging in rough play with other boys, whether welcome or not.

Re: Is this happening in the same country ...

forced to resign for sexual harassment because they touched someone's arm two decades ago

Not only is this hyperbole, it is hyperbole that understates and undercuts the real, believable, and disgusting accusations against men like Harvey Weinstein, Donald Trump, Roy Moore, and Woody Allen. It is hyperbole that creates a mindset of “well, if she didn’t report it the minute after it happened and record it from twenty angles, there’s nothing we can do” that permeates police investigations and generates a society that doubts any “undocumented” accusation of sexual assault or rape.

I trust that you do sexually harass or sexually assault others. That said: Your comment makes you sound like someone who could and would write off a young woman being gang raped at a frat party as “boys will be boys”. Reconsider how you talk this subject in the future; what you have say about it will say more about you than you might like.

Re: Is this happening in the same country ...

No, but it is happening in the same century where people who have raped, sexually abused, masturbated in front of, etc. vulnerable women (and, sometimes, men or even minors) in order to abuse their power are finally being held to account for their actions.

I'd suggest you seek the same help as those people clearly require, if you think that's analogous to touching someone's arm.

Re: Re: Re:

Manassas police detective David Abbott and assistant county prosecutor Claiborne Richardson were fully onboard with the invasive penis pics, and after the incarcerated teen failed to achieve an erection on demand, they got a 2nd warrant that (apparently) ordered the teen to get an erection-producing injection at a local hospital and continue with a 2nd set of photographs.

When news of this story broke, the police dept quickly issued a press release, and police officials confirmed to the press, that they would refuse to execute the 2nd warrant because it violated police policies.

It's hard to know if detective David Abbott had "gone rogue" and was getting a public spanking from higher-ups in the police dept, or if the department was just trying to save face against a tidal wave of negative publicity by putting on a public relations display (i.e., "good cop/bad cop") against detective Abbott and prosecutor Claiborne Richardson, who appeared to be the ones aggressively spearheading this penis-picture prosecution.

Amid the bad press, the original charges were then dropped but later refiled. The appeals order on PDF gives a slightly different version of events from the Washington Post and other news sources, so it's worth reading both.

Re: Erection Injection

Re: Re:

Resisted and refused to follow the order or be involved in any way, or simply voiced their objections and yet did it anyway?

The first I could respect, but reading the excerpts it sounds like it was at best the second, which might actually be worse than not objecting at all, as it would show that they knew what they were doing/involved in was wrong and did it anyway.

Re:

If the timing plays out then I suppose one could creatively argue that the prosecutor and judge are also guilty of manslaughter via exposing the detective to child porn which subsequently led to the abuse of children and, ultimately, his suicide.

Such a manslaughter case would make for a noteworthy argument...

...specifically that some people are so susceptible to stimulation by child porn that the courts could not regard such persons as having will or agency in their crimes.

To be fair, this has been a thesis of human psychology for decades now: Human beings are so manipulable, so easily susceptible to certain stimuli, and so easily driven to desperation by withholding certain necessities that it's of dubious fairness to hold them accountable for wrongdoing or assign them common responsibilities (e.g. managing workers, voting in officers, raising kids, driving, etc.)

Of course, human society is structured on the foundation that this is not the case, at least until we can build machines that can do these jobs better than we can.

Re:

A Manassas City police detective, who was the lead investigator in a controversial teen “sexting” case last year, shot and killed himself outside his home Tuesday morning as police tried to arrest him for allegedly molesting two boys he met while coaching youth hockey in Prince William County.

That would indicate Abbott was interested in boys. Thus Abbott probably had no objection to being ordered to photograph a teen as he masturbated. The fact that other officers were present? Make of that what you will. Maybe all of them are interested in boys.

Who could even come up with this scenario of forcing a teen boy to masturbate while being photograph? Oh, yeah . . . Abbott.

Maybe Abbott planted this idea into the prosecutor's mind?

When Abbott got the order to do this, he was no doubt thinking . . . Jackpot!

Following the link to the Abbott story, it appears that he solicited sex from multiple 13- and 14-year-old boys. That usually happened in person, with multiple years of electronic messages providing confirming evidence.

This wasn't a case of pursuing 17-almost-18 year olds, this was unambiguous pedophilia. Something like that isn't usually kept hidden. His fellow officers must have suspected or even known about it. Even if they thought that the 'evidence gathering' passed constitutional muster, why would they let him be involved?

Who remembers the movie Porkey's?

Children's civics class

In future children's civics class, they should teach that children need not masturbate upon orders from police officers...especially if one of the officers wants to take pictures...and even more so if any of the officers has a hard-on. And if your civics class is being taught by Judge Jan Roltsch-Anoll, tell her to wank off.

Who investigated the suicide?

Two sealed warrant judges, the prosecutor, and the other cops all had motive to off this guy. So is this another David Webb situation? Was his death ruled a suicide after the body was found having been shot in the head, twice?

Did his own department investigate the suicide?

Kinda makes you wonder if there aren't a number of other players that were involved in this guys extra curricular activities.

Re: Re: Re: Two Words

Evil Triumphs...

The problem with the purge train is that it never stops. If we're lucky we'll have a Robespierre moment, but the guillotines always beckon.

This, for example, is the failure of our glorious president big plan. He seems to believe that crime would just end if we purged the darkies...and the poor...and the intellectuals...and the Muslims...and the Jews...and then those who aren't really all that white (Mediterraneans, Irish, Non-Russian slavs)...then the middle class...then the not-very-rich...maybe get rid of impious Christians...

We humans really want to get back to those good old small town days where we lived in wikiups and didn't have enough people to run a power reactor...or smelt metal for nails, for that matter. Somehow, we imagine we won't miss the power and the nails and drinking water and decent beer.

This incident with the child-molester police officer is a symptom of a bigger problem that comes with power without review and oversight (power with honor and integrity is just an old fiction).

Of course, to be fair, our civilization is out of time. We have twenty, forty years tops before some kind of food crisis, or our natural disasters outpace our ability to recover, stuff that will make kiddy-fiddler cops a low priorty. We let our garbage and smoke outpace our ability to clean it up, also a symptom of government failure.

There's no limit to cop abuses it seems. And with a semi-compliant judiciary, a negligent legislative and an authoritarian executive this will not be the last absurd we'll hear. I won't be surprised when we hear that cops made a couple of teens have sex to produce pictures to compare with evidence.

The cop and anyone else involved

I see the Prince William county offers services for child protection along with a number to report offenses. Im thinking of leaving a phone message reporting Claiborne Richardson has forced a teen to masturbate in front of adults with one taking a picture.

In the case of § 1983…

…damages were repaired when declaratory relief was granted; so the 'judicial officer' can't be sued again for the deed.____________________________________________________________§ 1983.Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.____________________________________________________________[So, The Fourth Circuit Court of Appeals covered his six.]

HOWEVER, he CAN face sanctions by his Law Society for bringing the Administration of Justice into Severe Disrepute in that state. ‌‌ ‌‌ ;]